Colorado Revised Statutes 2017

[Pages:45]Colorado Revised Statutes 2017

TITLE 24

GOVERNMENT - STATE

ARTICLE 72

Public Records

PART 2

INSPECTION, COPYING, OR PHOTOGRAPHING

Cross references: For provisions concerning the distribution of reports of agencies pursuant to the "Information Coordination Act", see ? 24-1-136; for provisions concerning access to records pursuant to federal law, see the "Freedom of Information Act", 5 U.S.C. ? 552.

Law reviews: For article, "'Columbine' and Colorado's Records Acts", see 45 Colo. Law. 45 (Sept. 2016).

24-72-200.1. Short title. Part 2 of this article shall be known and may be cited as the "Colorado Open Records Act" or "CORA".

Source: L. 2009: Entire section added, (SB 09-292), ch. 369, p. 1969, ? 79, effective August 5.

24-72-201. Legislative declaration. It is declared to be the public policy of this state that all public records shall be open for inspection by any person at reasonable times, except as provided in this part 2 or as otherwise specifically provided by law.

Source: L. 68: p. 201, ? 1. C.R.S. 1963: ? 113-2-1.

ANNOTATION

Open records act creates a general

City of Commerce City, 988 P.2d 648

presumption in favor of public access to

(Colo. App. 1999).

government documents, exceptions to the

While the statute favors access to

act must be narrowly construed, and an

records, CORA does not require public

agreement by a governmental entity that

disclosure of all documents in the custody of

information in public records will remain

state employees or agencies. Mountain-

confidential is insufficient to transform a

Plains Inv. v. Parker Jordan Metro. Dist.,

public record into a private one. Daniels v.

2013 COA 123, 312 P.3d 260.

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Nothing in the expressions of public policy in the law concerning the operation of school boards and in the open records act conclusively directs that the terms of a settlement agreement between an outgoing school superintendent and a school district, which allude to unadjudicated allegations of sexual harassment against the superintendent, must categorically be subject to public inspection. Pierce v. St. Vrain Valley Sch. Dist., 981 P.2d 600 (Colo. 1999).

Courts guided by legislative intent in construing provisions. In construing the open records provisions, the courts are guided by the clear legislative intent manifested in the declaration of policy and the language of the provisions themselves. Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974).

Court considers and weighs public interest. The limiting language making certain of the open records provisions applicable except as "otherwise provided by law" is a reference to the rules of civil procedure and expresses the legislative intent that a court should consider and weigh whether disclosure would be contrary to the public interest. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Construction of open records law. Open records law is a general act and will not be interpreted to repeal a conflicting special provision unless the intent to do so is clear and unmistakable. Uberoi v. Univ. of Colo., 686 P.2d 785 (Colo. 1984) (decided prior to 1985 enactment of ? 24-72-202 (1.5)).

Section clearly eliminates any requirement that a person must show a

special interest in order to be permitted access to particular public records. Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974); Anderson v. Home Ins. Co., 924 P.2d 1123 (Colo. App. 1996).

The open records act does not expressly limit access to any records merely because a person is engaged in litigation with the public agency from which access to records is requested. People v. Interest of A.A.T., 759 P.2d 853 (Colo. App. 1988).

Official is unauthorized to deny access in absence of specific statutory provision. This section establishes the basic premise that in the absence of a specific statute permitting the withholding of information, a public official has no authority to deny any person access to public records. Denver Publishing Co. v. Dreyfus, 184 Colo. 288, 520 P.2d 104 (1974).

Vital statistics records held confidential and exempt from right to inspect. Eugene Cervi & Co. v. Russell, 31 Colo. App. 525, 506 P.2d 748 (1972), aff'd, 184 Colo. 282, 519 P.2d 1189 (1974).

Police personnel files and staff investigation reports not exempt from discovery. The open records provisions do not, ipso facto, exempt the personnel files and the staff investigation bureau reports of the Denver police department from discovery in civil litigation. Martinelli v. District Court, 199 Colo. 163, 612 P.2d 1083 (1980).

Applied in City & County of Denver v. District Court, 199 Colo. 303, 607 P.2d 985 (1980).

24-72-202. Definitions. As used in this part 2, unless the context otherwise requires: (1) "Correspondence" means a communication that is sent to or received by one or more specifically identified individuals and that is or can be produced in written form, including,

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without limitation: (a) Communications sent via U.S. mail; (b) Communications sent via private courier; (c) Communications sent via electronic mail. (1.1) "Custodian" means and includes the official custodian or any authorized person

having personal custody and control of the public records in question. (1.2) "Electronic mail" means an electronic message that is transmitted between two or

more computers or electronic terminals, whether or not the message is converted to hard copy format after receipt and whether or not the message is viewed upon transmission or stored for later retrieval. "Electronic mail" includes electronic messages that are transmitted through a local, regional, or global computer network.

(1.3) "Executive position" means any nonelective employment position with a state agency, institution, or political subdivision, except employment positions in the state personnel system or employment positions in a classified system or civil service system of an institution or political subdivision.

(1.5) "Institution" includes but is not limited to every state institution of higher education, whether established by the state constitution or by law, and every governing board thereof. In particular, the term includes the university of Colorado, the regents thereof, and any other state institution of higher education or governing board referred to by the provisions of section 5 of article VIII of the state constitution.

(1.6) "Institutionally related foundation" means a nonprofit corporation, foundation, institute, or similar entity that is organized for the benefit of one or more institutions and that has as its principal purpose receiving or using private donations to be held or used for the benefit of an institution. An institutionally related foundation shall be deemed not to be a governmental body, agency, or other public body for any purpose.

(1.7) "Institutionally related health care foundation" means a nonprofit corporation, foundation, institute, or similar entity that is organized for the benefit of one or more institutions and that has as its principal purpose receiving or using private donations to be held or used for medical or health care related programs or services at an institution. An institutionally related health care foundation shall be deemed not to be a governmental body, agency, or other public body for any purpose.

(1.8) "Institutionally related real estate foundation" means a nonprofit corporation, foundation, institute, or similar entity that is organized for the benefit of one or more institutions and that has as its principal purpose receiving or using private donations to be held or used for the acquisition, development, financing, leasing, or disposition of real property for the benefit of an institution. An institutionally related real estate foundation shall be deemed not to be a governmental body, agency, or other public body for any purpose.

(1.9) "Local government-financed entity" shall have the same meaning as provided in section 29-1-901 (1), C.R.S.

(2) "Official custodian" means and includes any officer or employee of the state, of any agency, institution, or political subdivision of the state, of any institutionally related foundation, of any institutionally related health care foundation, of any institutionally related real estate foundation, or of any local government-financed entity, who is responsible for the maintenance, care, and keeping of public records, regardless of whether the records are in his or her actual personal custody and control.

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(3) "Person" means and includes any natural person, including any public employee and any elected or appointed public official acting in an official or personal capacity, and any corporation, limited liability company, partnership, firm, or association.

(4) "Person in interest" means and includes the person who is the subject of a record or any representative designated by said person; except that, if the subject of the record is under legal disability, "person in interest" means and includes his parent or duly appointed legal representative.

(4.5) "Personnel files" means and includes home addresses, telephone numbers, financial information, and other information maintained because of the employer-employee relationship, and other documents specifically exempt from disclosure under this part 2 or any other provision of law. "Personnel files" does not include applications of past or current employees, employment agreements, any amount paid or benefit provided incident to termination of employment, performance ratings, final sabbatical reports required under section 23-5-123, C.R.S., or any compensation, including expense allowances and benefits, paid to employees by the state, its agencies, institutions, or political subdivisions.

(5) "Political subdivision" means and includes every county, city and county, city, town, school district, special district, public highway authority, regional transportation authority, and housing authority within this state.

(6) (a) (I) "Public records" means and includes all writings made, maintained, or kept by the state, any agency, institution, a nonprofit corporation incorporated pursuant to section 23-5121 (2), C.R.S., or political subdivision of the state, or that are described in section 29-1-902, C.R.S., and held by any local-government-financed entity for use in the exercise of functions required or authorized by law or administrative rule or involving the receipt or expenditure of public funds.

(II) "Public records" includes the correspondence of elected officials, except to the extent that such correspondence is:

(A) Work product; (B) Without a demonstrable connection to the exercise of functions required or authorized by law or administrative rule and does not involve the receipt or expenditure of public funds; (C) A communication from a constituent to an elected official that clearly implies by its nature or content that the constituent expects that it is confidential or that is communicated for the purpose of requesting that the elected official render assistance or information relating to a personal and private matter that is not publicly known affecting the constituent or a communication from the elected official in response to such a communication from a constituent; or (D) Subject to nondisclosure as required in section 24-72-204 (1). (III) The acceptance by a public official or employee of compensation for services rendered, or the use by such official or employee of publicly owned equipment or supplies, shall not be construed to convert a writing that is not otherwise a "public record" into a "public record". (IV) "Public records" means, except as provided in subparagraphs (VIII) and (IX) of paragraph (b) of this subsection (6), for an institutionally related foundation, an institutionally related health care foundation, or an institutionally related real estate foundation, all writings relating to the requests for disbursement or expenditure of funds, the approval or denial of

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requests for disbursement or expenditure of funds, or the disbursement or expenditure of funds, by the institutionally related foundation, the institutionally related health care foundation, or the institutionally related real estate foundation, to, on behalf of, or for the benefit of the institution or any employee of the institution. For purposes of this subparagraph (IV), "expenditure" shall be defined in accordance with generally accepted accounting principles.

(b) "Public records" does not include: (I) Criminal justice records that are subject to the provisions of part 3 of this article; (II) Work product prepared for elected officials. However, elected officials may release, or authorize the release of, all or any part of work product prepared for them. (III) Data, information, and records relating to collegeinvest programs pursuant to sections 23-3.1-225 and 23-3.1-307.5, C.R.S., as follows: (A) Data, information, and records relating to individual purchasers and qualified beneficiaries of advance payment contracts under the prepaid expense trust fund and the prepaid expense program, including any records that reveal personally identifiable information about such individuals; (B) Data, information, and records, including medical records, relating to designated beneficiaries of and individual contributors to an individual trust account or savings account under the savings programs established pursuant to part 3 of article 3.1 of title 23, C.R.S., including any records that reveal personally identifiable information about such individuals; (C) Trade secrets and proprietary information regarding software, including programs and source codes, utilized or owned by collegeinvest; and (D) Marketing plans and the results of market surveys conducted by collegeinvest. (IV) Materials received, made, or kept by a crime victim compensation board or a district attorney that are confidential pursuant to the provisions of section 24-4.1-107.5. (V) Notification of a possible nonaccidental fire loss or fraudulent insurance act given to an authorized agency pursuant to section 10-4-1003 (1), C.R.S. (VI) For purposes of an institutionally related foundation, any documents, agreements, or other records or information other than the writings relating to the financial expenditure records specified in subparagraph (IV) of paragraph (a) of this subsection (6). (VII) For purposes of an institution or an institutionally related foundation: (A) The identity of, or records or information identifying or leading to the identification of, any donor or prospective donor to an institution or an institutionally related foundation; (B) The amount of any actual or prospective gift or donation from a donor or prospective donor to an institutionally related foundation; (C) Proprietary fundraising information of an institution or an institutionally related foundation; or (D) Agreements or other documents relating to gifts or donations or prospective gifts or donations to an institution or an institutionally related foundation from a donor or prospective donor. (VIII) For purposes of an institutionally related health care foundation, expenditures by an institutionally related health care foundation to an institution for medical or health care related programs or services; (IX) For purposes of an institutionally related real estate foundation, prior to the completion of any transaction for the acquisition, development, financing, leasing, or disposition of real property, all writings relating to such transaction;

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(X) The information security plan of a public agency developed pursuant to section 2437.5-404 or of an institution of higher education developed pursuant to section 24-37.5-404.5;

(XI) Information security incident reports prepared pursuant to section 24-37.5-404 (2)(e) or 24-37.5-404.5 (2)(e);

(XII) Information security audit and assessment reports prepared pursuant to section 2437.5-403 (2)(d) or 24-37.5-404.5 (2)(d); or

(XIII) The information provided to the state medical marijuana licensing authority pursuant to section 25-1.5-106 (7)(e), C.R.S.

(6.5) (a) "Work product" means and includes all intra- or inter-agency advisory or deliberative materials assembled for the benefit of elected officials, which materials express an opinion or are deliberative in nature and are communicated for the purpose of assisting such elected officials in reaching a decision within the scope of their authority. Such materials include, but are not limited to:

(I) Notes and memoranda that relate to or serve as background information for such decisions;

(II) Preliminary drafts and discussion copies of documents that express a decision by an elected official.

(b) "Work product" also includes: (I) All documents relating to the drafting of bills or amendments, pursuant to section 23-304 (1) or 2-3-505 (2)(b), C.R.S., but it does not include the final version of documents prepared or assembled pursuant to section 2-3-505 (2)(c), C.R.S.; (II) All documents prepared or assembled by a member of the general assembly relating to the drafting of bills or amendments; (III) All documents prepared by or submitted to any legislative staff in connection with assisting a member of the general assembly in responding to the correspondence from a constituent when such correspondence is not a public record of an elected official as provided for in subsection (6) of this section; (IV) All documents and all research projects conducted by staff of legislative council pursuant to section 2-3-304 (1), C.R.S., if the research is requested by a member of the general assembly and identified by the member as being in connection with pending or proposed legislation or amendments thereto. However, the final product of any such research project shall become a public record unless the member specifically requests that it remain work product. In addition, if such a research project is requested by a member of the general assembly and the project is not identified as being in connection with pending or proposed legislation or amendments thereto, the final product shall become a public record. (c) "Work product" does not include: (I) Any final version of a document that expresses a final decision by an elected official; (II) Any final version of a fiscal or performance audit report or similar document the purpose of which is to investigate, track, or account for the operation or management of a public entity or the expenditure of public money, together with the final version of any supporting material attached to such final report or document; (III) Any final accounting or final financial record or report; (IV) Any materials that would otherwise constitute work product if such materials are produced and distributed to the members of a public body for their use or consideration in a public meeting or cited and identified in the text of the final version of a document that expresses

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a decision by an elected official. (d) (I) In addition, "work product" does not include any final version of a document

prepared or assembled for an elected official that consists solely of factual information compiled from public sources. The final version of such a document shall be a public record. These documents include, but are not limited to:

(A) Comparisons of existing laws, ordinances, rules, or regulations with the provisions of any bill, amendment, or proposed law, ordinance, rule, or regulation; comparisons of any bills, amendments, or proposed laws, ordinances, rules, or regulations with other bills, amendments, or proposed laws, ordinances, rules, or regulations; comparisons of different versions of bills, amendments, or proposed laws, ordinances, rules, or regulations; and comparisons of the laws, ordinances, rules, or regulations of the jurisdiction of the elected official with the laws, ordinances, rules, or regulations of other jurisdictions;

(B) Compilations of existing public information, statistics, or data; (C) Compilations or explanations of general areas or bodies of law, ordinances, rules, or regulations, legislative history, or legislative policy. (II) This paragraph (d) shall not apply to documents prepared or assembled for members of the general assembly pursuant to paragraph (b) of this subsection (6.5). (7) "Writings" means and includes all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials, regardless of physical form or characteristics. "Writings" includes digitally stored data, including without limitation electronic mail messages, but does not include computer software. (8) For purposes of subsections (6) and (6.5) of this section and sections 24-72-203 (2)(b) and 24-6-402 (2)(d)(III), the members of the Colorado reapportionment commission shall be considered elected officials.

Source: L. 68: p. 201, ? 2. C.R.S. 1963: ? 113-2-2. L. 77: (6) amended, p. 1250, ? 2, effective December 31. L. 85: (1.5) added, p. 867, ? 1, effective June 6. L. 90: (3) amended, p. 449, ? 21, effective April 18. L. 91: (5) amended, p. 726, ? 3, effective April 20. L. 92: (4.5) added and (7) amended, p. 1103, ? 2, effective July 1. L. 94: (1.3) added, p. 936, ? 1, effective April 28; (4.5) amended, p. 832, ? 2, effective April 28. L. 96: (1.7) added and (2) and (6) amended, p. 141, ? 2, effective April 8; (1), (6), and (7) amended and (1.1), (1.2), and (6.5) added, p. 1480, ? 4, effective June 1. L. 97: (6)(b)(II) and (6.5)(b) amended and (6.5)(d) added, p. 1104, ?? 2, 3, effective August 6. L. 98: (6)(b)(III) added, p. 213, ? 3, effective August 5. L. 99: (6.5)(c)(IV) amended, p. 205, ? 2, effective March 31. L. 2000: (6)(b)(III) amended, p. 223, ? 4, effective March 29; (6)(b)(IV) added, p. 243, ? 8, effective March 29; (6)(a)(I) amended, p. 415, ? 6, effective April 13; (6)(b)(V) added, p. 1736, ? 4, effective June 1. L. 2001: (8) added, p. 1075, ? 4, effective August 8. L. 2002: (3) amended, p. 643, ? 2, effective May 24; (5) amended, p. 402, ? 3, effective August 7. L. 2004: (6)(b)(III) amended, p. 575, ? 33, effective July 1. L. 2005: (1.6), (1.8), (1.9), (6)(a)(IV), (6)(b)(VI), (6)(b)(VII), (6)(b)(VIII), and (6)(b)(IX) added and (2) amended, pp. 530, 531, ?? 1, 2, 3, effective May 24; (5) amended, p. 1068, ? 15, effective January 1, 2006. L. 2006: (1.7), (1.8), and (1.9) amended, p. 1503, ? 43, effective June 1; (6)(b)(X), (6)(b)(XI), and (6)(b)(XII) added, p. 1719, ? 2, effective June 6. L. 2007: (6)(b)(X), (6)(b)(XI), and (6)(b)(XII) amended, p. 917, ? 16, effective May 17. L. 2009: (6)(a)(II)(C) and (6.5)(b) amended, (HB 09-1348), ch. 358, p. 1864, ? 3, effective June 1. L. 2010: (6)(b)(XI) and (6)(b)(XII) amended and (6)(b)(XIII) added, (HB 10-1284), ch. 355,

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p. 1687, ? 13, effective July 1. L. 2011: (6)(b)(X) amended, (SB 11-062), ch. 128, p. 435, ? 18, effective April 22; (6)(b)(XIII) amended, (HB 11-1043), ch. 266, p. 1211, ? 18, effective July 1. L. 2015: (6)(b)(III)(B) amended, (HB 15-1359), ch. 269, p. 1055, ? 15, effective June 3.

Editor's note: Amendments to subsection (6) by House Bill 96-1029 and Senate Bill 96212 were harmonized.

Cross references: (1) For the legislative declaration contained in the 1996 act amending subsections (1), (6), and (7) and enacting subsections (1.1), (1.2), and (6.5), see section 1 of chapter 271, Session Laws of Colorado 1996.

(2) For the legislative declaration contained in the 2002 act amending subsection (3), see section 1 of chapter 187, Session Laws of Colorado 2002.

(3) For the legislative declaration contained in the 2005 act amending subsection (5), see section 1 of chapter 269, Session Laws of Colorado 2005.

ANNOTATION

Law reviews. For article, "E-mail,

to be exempt from disclosure under the

Open Meetings, and Public Records", see 25

personnel files exemption must be of the

Colo. Law. 99 (Oct. 1996).

same general nature as an employee's home

The courts are not agencies for all

address and telephone number or personal

purposes of this act. Office of State Court

financial information; it does not include

Adm'r v. Background Info. Servs., Inc., 994

records relating to complaints of sexual

P.2d 420 (Colo. 1999).

harassment, gender discrimination, and

Records of the supreme court

retaliation. Such records must be produced,

regulation counsel and office of attorney

subject to redaction of names of individuals

regulation counsel are not public records.

against whom complaints could not be

Supreme court regulation counsel and the

substantiated. Daniels v. City of Commerce

office of attorney regulation counsel are part

City, 988 P.2d 648 (Colo. App. 1999).

of the judicial branch of state government.

A record that documents a

Because the judicial branch is not the state

teacher's request for sick leave is not part

or an agency of the state for purposes of the

of the teacher's personnel file. Such

open records act, judicial records, including

records are not of the same general nature as

regulation counsel records, are not public

a teacher's personal demographic

records as defined in subsection (6). Gleason

information and they should not be kept

v. Judicial Watch, Inc., 2012 COA 76, 292

confidential as personnel files pursuant to

P.3d 1044.

the first sentence in subsection (4.5) because

Scope of term "personnel files". A

a teacher's absence is directly related to the

public entity may not restrict access to

teacher's job as a public employee. The fact

information by merely placing a record in a

of a teacher's absence from the workplace is

personnel file; a legitimate expectation of

neither personal nor demographic. Jefferson

privacy must exist. Denver Publishing Co. v.

County Educ. v. Jefferson Sch. Dist., 2016

Univ. of Colo., 812 P.2d 682 (Colo. App.

COA 10, 378 P.3d 835.

1990).

A record that documents a

Information "maintained because of

teacher's request for sick leave pertains to

the employer-employee relationship" so as

"any compensation" and the benefit of

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